The BAI, John Waters and regulating away Other voices

As a member of the Broadcasting Authority of Ireland (BAI), John Waters is one of nine people who are in charge of regulating all broadcasting in Ireland- RTE TV and Radio, TV3, and all commercial radio. He is also one of only two of those nine who sits on the Contracts Awards Committee which licences independent commercial and community broadcasters including digital television providers.

He has described the circumstances of his initial appointment himself:

I was appointed to the broadcasting commission by Dermot Ahern, then minister for communications, in 2002. Ahern, whom I’d met casually on two or three occasions, said I was being appointed because of an article I’d written about a particular decision of the commission.
But Dunphy confided a different version of my appointment to the commission. Shortly before the appointment, he had attended a brunch in the Dublin 4 home of the developer Sean Dunne.
Bertie Ahern, then taoiseach, had been at the brunch, and Dunphy claimed he had suggested that the government might “do something” for me. (It was the weekend in 2002 over which I’d been briefly fired from The Irish Times, having made some adverse public comments about the then editor and the remuneration of senior executives.) According to Dunphy, Bertie had said he’d see what could be done.
This story (which I have been unable to verify but have no reason to doubt) tells us a few things about Dunphy.

On The Saturday Night Show of the 11th January 2014, Rory O’Neill, who performs in drag as his alter ego Panti, was interviewed by Brendan O’Connor. The interview was well conducted, I thought, and thoughtful. Mr. O’Neill addressed the questions of how members of minorities are treated as outsiders (as the Other, as the critics might have it) because of the relative unfamiliarity of the majority with them as individuals.

He said that, therefore, the fact that Ireland is as small as it is means that social change can come faster because of the likelihood that individuals will get to know members of minorities, personally. He addresses that idea primarily in terms of racism, because of the immediacy with which a person can be Othered if they look differently. However, he also addressed the same tendency as it applied to the minority he belonged to and reflected that the fact that everyone knew an openly gay person meant that Irish society had moved to be considerably more “open and pluralistic” (see S25(1)(c) of the Broadcasting Act);

“The only place that you see it’s OK to be really horrible and mean about gays is on the internet in the comments and people who make a living writing opinion pieces for newspapers,” he said.

Brendan O’Connor then went on to press him to name the newspaper opinion writers whose writing he felt were ‘horrible and mean about gays’, which he did.

By Tuesday, Mr. O’Neill tweeted

So my appearance on the Sat Night Show has been taken off the RTE Player because someone I mentioned is upset. Legally upset. *smile*

It removed the entire programme earlier this week, after claims that comments made by a guest about journalist John Waters were defamatory.

The Irish Independent understands that representatives of Mr Waters sent a legal letter to the broadcaster, seeking the removal of the interview.
…
Mr Waters refused to comment when contacted by the Irish Independent. However, sources confirmed that he contacted the broadcaster and asked for the programme to be removed.

When he did not receive what he saw as a satisfactory response, his solicitors sent RTE a legal letter.

Now, this is where we reach an interesting point. Because, provided we accept that the Irish Independent was accurate, this was not merely a letter from an aggrieved citizen to a broadcaster. It was also a letter from one of that Broadcaster’s regulators seeking to have that broadcaster censor a citizen, who was both contributing to a matter of public debate and engaging in a defence of a minority of which he is a member, bona fide and without malice.

This is, to put it mildly, an unusual situation.

As I say, the difficulty here is that John Waters is not just a private citizen. He is a member of the Government-appointed Broadcasting Authority of Ireland. And as part of that appointment he has to accept certain constraints on his behaviour. Firstly, uniquely amongst all citizens, the nine members of the BAI are told to protect one constitutional right above all others.

The Broadcasting Act 2009 sets out the obligations and function of the Authority and its members in Section 25 (1) of the Act. They must ensure

(b) that the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, are upheld,
and
(c)the provision of open and pluralistic broadcasting services.

This section sets out what are the primary duties of the Authority and each of its members. They place an obligation on all the Authority members to be act to ensure that the right to freedom of expression is “especially” upheld and that broadcasting services are “open and pluralistic”. This is actually their job.

There is a corollary of this.
The nine members of the Broadcasting Authority of Ireland must not seek to lightly restrict liberty of expression on the basis of claims of defamation untested before the courts. The inhibitions on them before seeking the silencing of debate are significantly higher than on the rest of us.

A broadcasting Regulator who is obliged to uphold the constitutional “liberty of expression” above all other democratic and Constitutional values and to act to “ensure the provision of open and pluralistic broadcasting” can choose to follow their statutory duty. Or they can contact a broadcaster and obtain the silencing of a dissenting view without testing the legitimacy of their complaint before a court.

But I can’t see any way that they can do both.

When it comes to the exercise of power, nothing speaks louder than silence.